Regulating Doctors Regulating Doctors David Gladstone (Editor) James Johnson William G. Pickering Brian Salter Meg Stacey Institute for the Study of Civil Society London First published June 2000 © The Institute for the Study of Civil Society 2000 email: books@civil-society.org.uk All rights reserved ISBN 1-903 386-01-2 Typeset by the Institute for the Study of Civil Society in New Century Schoolbook Printed in Great Britain by St Edmundsbury Press Bury St Edmunds, Suffolk Contents Page The Authorsvi Foreword David G. Green viii Editor’s Introduction: Regulation, Accountability and Health Care David Gladstone 1 Change in the Governance of Medicine: The Politics of Self-Regulation Brian Salter 8 The General Medical Council and Professional Self-Regulation Meg Stacey 28 Self-Regulation and the Role of the General Medical Council James Johnson 40 An Independent Medical Inspectorate William G. Pickering 47 Notes 65 Index 75 vi The Authors David Gladstone is Director of Studies in Social Policy in the School for Policy Studies at the University of Bristol. He has published extensively on British social policy past and present. Recent titles include: British Social Welfare, Past, Present and Future, UCL Press, 1995; Before Beveridge: Welfare Before the Welfare State (ed.), IEA, 1999; The Twentieth Century Welfare State, Macmillan, 1999. In addition, David Gladstone is General Series Editor of Historical Sources in Social Welfare, Routledge/Thoemmes Press, and of the Open University Press’ Introducing Social Policy Series. He lectures widely on aspects of British welfare history and has held several visiting professorships, especially in the USA. James Johnson is a consultant vascular surgeon, and postgraduate clinical tutor at Halton General Hospital, Runcorn. He took office as chairman of the Joint Consultants Committee (JCC) in November 1998, having served as vice-chairman of the JCC from November 1994. The Joint Consultants Committee was set up in 1948 by the royal medical colleges and the BMA as a committee able to speak for the consultant body with one voice. The JCC represents the medical profession in discussions with the Department of Health on matters relating to the maintenance of standards of professional knowledge and skill in the hospital service and the encouragement of education and research. Members include the presidents of the medical royal colleges and their faculties and representatives from the BMA’s consultants and junior doctors committees. Mr Johnson was chairman of the BMA Central Consultants and Specialists Committee from October 1994 to October 1998, and was also a previous chairman of the Junior Doctors Committee. He is also currently a member of the BMA Council. William G. Pickering is a medical practitioner and medico-legal adviser. He qualified at Kings College Hospital in 1973 and has worked in general medicine, paediatrics and general practice. He has also had experience of medico-legal practice, having been involved in the preparation of reports for both plaintiffs and defendants in legal actions. He has a longstanding interest in the question of whether or not patients benefit from particular medical interventions, and also in the issue of ill-health caused by doctors’ treatments. He has been published in many leading medical journals on these and other topics. His first published work on the need for a medical inspectorate was an AUTHORS vii article entitled ‘Glasnost and the medical inspectorate’ (Journal of the Royal College of General Practitioners, November 1988, pp. 517-18). As well as the clinical issues and the questions regarding quality control in medicine which an inspectorate raises, he is also interested in more common questions of medical ethics. Brian Salter is Professor of Health Services Research at the Univers- ity of East Anglia. He is a public policy analyst who has published widely on health and education policy matters. Recent titles include: Oxford, Cambridge and the Changing Ideas of a University, Open University Press, 1992; The State and Higher Education, Woburn Press, 1994 and The Politics of Change in the Health Service, Mac- millan, 1998. Meg Stacey, Emerita Professor of Sociology of the University of Warwick, has taught and researched in the sociology of health and health care for about 30 years, initially researching issues around the welfare of children in hospital. She has published widely in health matters. She has served on local and national bodies, including the (former) Hospital Management Committee in Swansea, the South Warwickshire Community Health Council and the South Warwick- shire Maternity Services Liaison Committee, and the (former) Welsh Hospital Board, as well as the General Medical Council. She sat on the latter from 1976-1983 and subsequently researched it with support from the Economic and Social Research Council and the Leverhulme Trust. Alert to moral and social issues in medical practice, she is currently active in the independent Human Values in Health Care Forum. viii Foreword The conviction of the GP, Harold Shipman, for murdering several of his patients was taken as evidence that something was fundamentally wrong with medical regulation, and both the Government and the General Medical Council (GMC) have conceded that reform is necessary. However, the real problem is self-regulation itself, which allows the organised medical profession to exploit monopoly power. Indeed, for nearly a hundred years the GMC has functioned, not only as the guardian of medical ethics, but also as the enforcer of a trade- union rule book. The root of the problem lies in changes made at the beginning of the twentieth century. Towards the end of the nineteenth century doctors were keen to distinguish their profession from ‘trade’. A profession, doctors claimed, enforced higher standards than the minimalist ‘honesty is the best policy’ pragmatism of the market. But did it? In truth there have been two traditions within the medical profession. One saw medicine as a vocation, and insisted on a code of ethics which prohibited doctors from putting their interests above those of their patients. The other regarded medicine as a ‘guild’ passing on the ‘mystery’ of medicine from generation to generation and showing solidarity against outsid- ers. The GMC continues to reflect both these traditions. The origins of the General Medical Council lie in the Medical Act of 1858 which empowered it to erase a doctor from the medical register if he was found guilty of ‘infamous conduct in any professional respect’. Some doctors took the view that it constituted ‘infamous conduct’ to fail to co-operate with professional restrictive practices intended to limit competition and raise fees. Several members of the GMC argued that it would be ultra vires for it to protect the ‘pecuniary interests’ of doctors. However, the GMC came under strong pressure from medical militants and a resolution passed in July 1899 by the County of Durham Medical Union reveals their ‘guild’ mentality: That when the Qualified Practitioners of any district make a combined effort to raise the standard of their fees, and thereby the status of the profession, it should be deemed infamous conduct in a professional respect for any Registered Practitioner to attempt to frustrate their efforts by opposing them at cheaper rates of payment, and canvassing for patients. In 1902 the GMC succumbed to these pressures and outlawed advertising, the chief means of attracting new patients. The case in question concerned a doctor who had issued handbills in a poor district of Birmingham. Initially he had announced that he would provide a FOREWORD ix free service for the poor, but he was so inundated by the response that he found it necessary to issue a second circular advertising a small charge of 3d, much lower than the going rate. The Medical Defence Union led the case against him and told the GMC that the circulars had been issued with one intention only: to take patients from other ‘medical men’. The GMC had resisted such pressures for many years, but in 1902 it caved in and banned advertising. That the GMC was being openly used to further the pecuniary interests of doctors at the expense of patients was well understood at the time. There was much press interest, including accusations that the GMC had become an instrument of ‘trade-unionism’. Competition was no longer something which might lead to social ostracism by the medial fraternity, it could now cost you your job, and the BMA was not slow to point this out to ‘blacklegs’. The philosophy behind the GMC is to protect consumers by issuing a licence only to doctors who have undergone a standardised prog- ramme of education. Before the GMC was founded in 1858 there were 21 licensing bodies, and to some commentators this seemed like chaos. However, we can now see more clearly that there was merit in competition between organisations upholding different standards. The reality of a single standard has not been that bad doctors have been eliminated, but quite the opposite. Bad doctors, and in extreme cases even criminals, have been shielded from normal accountability. Without the official seal of approval of the GMC, doctors would have to rely on their reputation, technical competence, character and personal qualities to attract patients. But so long as they are on the medical register, and so long as the medical register is controlled by fellow doctors who can be counted on to be lenient in virtually all circumstances, they are safe from serious scrutiny. As in so many spheres, concentrated monopoly power is the underly- ing problem, and the safest remedy would be to abolish the GMC. Without the GMC we could expect a variety of agencies to emerge giving their own seal of approval to doctors and hospitals. The royal colleges would undoubtedly play a part, perhaps consumer organisa- tions might get involved, or maybe health insurers would provide a seal of approval, just as car insurers maintain an approved list of vehicle repairers. Such diversity would be more likely to foster the tradition of medicine as a vocation which has been diminished, but by no means destroyed, by the corrosive influence of officially-sanctioned monopoly. Each in their own way, the contributors to this book struggle with the same problem and each offers a different solution. But while there is, as yet, no agreement about the best strategy for reform, there is now REGULATING DOCTORS x a wide consensus that the regulation of the medical profession cannot be left as it is. But far more is at stake than is implied by the contest between champions of self-regulation and advocates of consumer control. A free society depends for its vitality on the existence of organisations which are independent of the political process, so that when political parties submit their manifestos for appraisal by public opinion, there is a truly independent body of opinion capable of standing in judgement, and not merely a mass of individuals who have been manipulated by the technicians of ‘news management’. Historically the professions have been prominent among the organisations which have provided the strong voices capable of serving as bulwarks against the undue concentration of political power. The authority of the medical profes- sion rested partly on science but also on public respect for the tradition of medicine as a vocation. Today, the challenge is to discover how best to rebuild this spirit. The issue touches not only upon the machinery of regulation, but also the extent to which clinical judgement has been eroded as doctors have become more like Treasury gatekeepers and less the champions of the patient. An independent profession, inspired by service, and determined to put patients first, should not be content to submit to central direction. For far too long many NHS doctors have been willing to remain silent while they withheld or delayed clinically necessary treatments on financial grounds. GPs, in particular, have become progressively more like salaried government employees than independent professionals and, although it will strike many as counter-intuitive, abolishing the GMC is among the measures necessary to reinvigorate the tradition of medicine as a vocation. David G. Green [...]... for developing self-regulation may not be in its hands 24 REGULATING DOCTORS The state is no doubt aware that life in the NHS without the cooperation of doctors, in clinical governance as elsewhere, would be extremely difficult For that reason A First Class Service contains much talk of partnership with the profession and of the contribution of doctors to the proposed national bodies for standard setting... probably enduring impetus.13 As Klein points out: 12 REGULATING DOCTORS Bristol represents a landmark in the history of self-regulation of the medical profession in the UK in terms of its length, its salience in the eyes of the public, and the issues it has raised 14 By providing an emotive focal point for the expression of public doubt about the competence of doctors, the Bristol case has politicised selfregulation... will more transparently work in the interests of patients rather than doctors In the Secretary of State’s words: The GMC … must be truly accountable and it must be guided at all times by the welfare and safety of patients We owe it to the relatives of Shipman’s victims to prevent a repetition of what happened in Hyde.2 1 2 REGULATING DOCTORS The Bristol case and the Shipman conviction have given undoubted... care In that context it is interest- DAVID GLADSTONE 7 ing to note that over the past six years complaints against doctors have risen three-fold and that currently the GMC has a backlog of 160 disciplinary cases awaiting decision That raises issues about the procedures of medicine’s self -regulating body But, as the Secretary of State indicated in his speech establishing the independent inquiry, the issue... act to protect the citizens on whose behalf it originally ceded the privilege of self-regulation when it established the GMC Not to do so would constitute a failure by the state to fulfil the 10 REGULATING DOCTORS terms of its own contract with civil society—that is, the delivery of the healthcare rights enshrined in British citizenship The three contracts between medicine, civil society and the state... clear indication of the erosion of that authority,10 that technology has increased the accessibility of medical knowledge to non -doctors, that medicine has become reliant upon new areas of knowledge which it does not control,11 and that the preparedness of patients to challenge doctors decisions is reflected in the steady rise in complaints about medical care and the prominence of patient lobby groups... introduced new systems which are more proactive The performance review procedures are designed to enhance the Council’s ability both to detect and correct inappropriate standards in clinical care 4 REGULATING DOCTORS They also suggest a range of corrective actions to be taken once the nature of a doctor’s poor performance has been established Both the essays by Salter and Johnson allude to the role of... in the structure of the NHS’ was a bargain between medicine and the state which ensured that ‘while central government controlled the budget, doctors controlled what happened within that budget’,18 it was inevitable that, in their disposal of NHS resources, doctors would have to perform the necessary rationing function of balancing the demand/supply equation if the system was not to collapse This function... professionalised state’.25 Confirmation, if confirmation were needed, of medicine’s uniquely powerful position within the Health Service came with the publication of the Merrison Report on the 14 REGULATING DOCTORS regulation of the medical profession, which reasserted the advantages to society of a self-determining knowledge élite.26 Yet, with the arrival of the 1980s, the apparent inevitability of... place with the promotion of NHS managers as a power group to rival the doctors, the erosion of the established ‘iron triangle’ of the medical profession, officials and ministers,30 the abolition of medicine’s policy veto and its exclusion from the inner sanctum of policy making from the 1988 Review of the NHS onwards, and, as the doctors wounded surprise turned to anger, a series of acrimonious disputes . Regulating Doctors Regulating Doctors David Gladstone (Editor) James Johnson William G. Pickering Brian. century. Towards the end of the nineteenth century doctors were keen to distinguish their profession from ‘trade’. A profession, doctors claimed, enforced higher standards